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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Makos 5



(a) When our Mishnah rules ...
1. ... 'Meshalshin be'Mamon', it means - that the Eidim Zomemin divide between them the money that they owe the defendant against whom they testified.
2. ... 'Ein Meshalshin be'Makos', it means - that each one receives the full quota of Malkos.
(b) Abaye learns the latter Din from a 'Gezeirah-Shavah' "Rasha" "Rasha" from Chayvei Miysah. Rava however, learns it from a S'vara - because otherwise, they would not be conforming with the Torah's requirement of 'Ka'asher Zamam'.

(c) The same S'vara does not apply to Mamon - because whereas Malkos is not called Malkos unless the Nadun receives the full amount of lashes, Mamon is called Mamon even if they divide it, since Mamon depends on the recipient.

(a) Our Mishnah states 'Ein ha'Eidim Na'asin Zomemin ad she'Yazimu es Atzman' - to preclude a case where the second pair of witnesses claim that the murderer or the victim was with them at the time.

(b) According to the Tana Kama, irrespective of how many pairs of witnesses Reuven and Shimon declare Zomemin, they are believed, and (in a case of Chiyuv Misah) all the pairs are put to death. Rebbi Yehudah however, rules that this is a put-up job, and we cannot believe them, except to kill the first witnesses.

(c) Rav Ada (or Rabah or Rava) learns from the Pasuk "ve'Hinei Eid Sheker ha'Eid, Sheker Anah be'Achiv" - that the witnesses are only Zomemin if the second witnesses prove them false by testifying against them personally.

(d) de'Bei Rebbi Yishmael learns it from the Pasuk "Ki Yakum Eid Chamas be'Ish La'anos Bo Sarah" - which he interprets to mean that the testimony must be directly removed (meaning the witnesses).

(a) Rava draws a distinction, in a case where Reuven and Shimon testified that Levi killed Yehudah ...
1. ... on the east side of the palace, and Yisachar and Zevulun claim that Reuven and Shimon were with them on the west side of the palace at that time - between where it is possible to see from the west to the east (in which case they will not be Zomemin), and where it is not (in which case they will).
2. ... on Sunday morning in Sura, and Yisachar and Zevulun testify that Reuven and Shimon were with them in Neherda'a on Sunday evening - between where it is possible to get from Sura to Neherda'a (in which case they will not be Zomemin), and where it (in which case, they will).
(b) The reason that ...
1. ... the first case is not obvious is - because one might have thought that even if most people cannot see from one side of the palace grounds to the other, perhaps we ought to take into consideration the possibility that Reuven and Shimon's eyesight is particularly good, and not declare them Zomemin.
2. ... the second case is not obvious is - because, by the same token, even if it is not possible to travel from Sura to Neherda'a in one day, perhaps Reuven and Shimon made it by means of a particularly fast racing camel. Note, that presumably, both of these suppositions are based on the Pasuk "ve'Hitzilu ha'Eidah" (the obligation to try and save a fellow-Jew from the death-sentence).
(a) Rava rules in a case where Reuven and Shimon testify that Levi killed Yehudah, and Yisachar and Zevulun then render them Zomemin, adding that Levi did indeed kill Yehudah but 1. on Tuesday, or even 2. on the Friday before, that the first pair are Chayav Misah. We might have thought otherwise ...
1. ... in the first case - because Reuven and Shimon were testifying against a man who had really murderer, and who was therefore Chayav Misah anyway.
2. ... in the second case (even after knowing the first ruling) - because in this case, he had even murdered prior to the date that they gave, which certainly ought to exempt them from being sentenced to death.
(b) They are nevertheless Chayav Misah - because a murderer is not considered Chayav Misah until Beis-Din pronounce that he is (not even retroactively after they declare him Chayav).

(c) We ask from the Mishnah later, which expressly declares Reuven and Shimon Chayav Misah, even though Levi is found to be Chayav too (so what is Rava's Chidush?). And we answer - that Rava's Chidush lies in his second statement, which exempts Reuven and Shimon from the death-penalty should their testimony have taken place after Levi had already been sentenced (in another Beis-Din, only the current Beis-Din were unaware of the sentence).

(a) Rava rules in the Seifa that in a case where Reuven and Shimon testified on Thursday that Levi was sentenced to death for the murder of Yehudah on Monday, and Yisachar and Zevulun, after testifying 'Imanu Heyisem', add that he was sentenced on Tuesday, Reuven and Shimon are Patur (despite the fact that when Reuven and Shimon claimed that Levi had murdered Yehudah, the murder had not yet taken place) ...

(b) ... because when Reuven testified, Levi had already been sentenced to death, and witnesses cannot became Chayav Misah for testifying against a dead man.

(c) In a case where Reuven and Shimon testify on Thursday that Levi ...

1. ... borrowed a hundred Zuz from Shimon on Monday, and Yisachar and Zevulun, after testifying 'Imanu Heyisem', add that he borrowed the money on Tuesday - Reuven and Shimon are Patur (because a debtor is obligated to pay from the moment that he borrows, irrespective of whether Beis-Din have obligated him to pay or not).
2. ... stole a sheep, and Shechted or sold it on Monday, and Yisachar and Zevulun, after testifying 'Imanu Heyisem', add that he stole it ... on Tuesday or even on the Friday before - Reuven and Shimon are Chayav ...
(d) ... because, unlike Mamon - K'nas only becomes Chayav when Beis-Din obligate him to pay. Proof of this is the principle 'Modeh bi'Kenas, Patur' ('Someone who admits to a K'nas is Patur'). Consequently, K'nas is equivalent to Chiyuv Misah in this regard.



(a) We ask that if, as Rebbi Yehudah in our Mishnah claims, 'Istatis Hi Zu', why do we sentence the first pair of witnesses to death on their testimony. We reject Rebbi Avahu's answer (that the Tana speaks when they were already put to death) on the grounds - that if the Din has already been carried out, what is the point of the Mishnah mentioning it?

(b) Rava therefore explains Rebbi Yehudah's statement - to mean that if there is only one pair of witnesses (whom the Mazimin declare to be Zomemin), then they are sentenced to death, but not if there are more.

(c) The Kashya we ask (and remain with) on Rava from Rebbi Yehudah's Lashon is - the addition of the word ('Ein Nehereges Ela Kat Rishonah) 'Bilevad', which doesn't really make much sense according to Rava's interpretation.

(a) In a case where a woman brought two pairs of witnesses who were found to be Zomemin, and she produced a third pair, Resh Lakish ruled - that the woman has a Chazakah for hiring false witnesses, and the third pair was not acceptable.

(b) Rebbi Elazar objected to Resh Lakish's ruling's however, on the grounds - that even if the woman has a Chazakah, the third pair of witnesses don't (so how can we invalidate them?)

(c) When the same thing happened with Resh Lakish, only in the presence of Rebbi Yochanan, who presented the same argument as Rebbi Elazar, Resh Lakish became angry with Rebbi Elazar - whom, he suspected, had received his ruling from Rebbi Yochanan, but that he had failed to say so.

(d) After suggesting that Resh Lakish holds like Rebbi Yehudah and Rebbi Yochanan, like the Rabbanan, we reconcile ...

1. ... Resh Lakish with the Rabbanan, inasmuch as even they will agree with Rebbi Yehudah in this case, invalidating the witnesses - seeing as the woman was looking for false witnesses, even going so far as to pay them for their services (whereas in the case in our Mishnah, the second pair of witnesses were acting on their own volition.
2. ... Rebbi Yochanan with Rebbi Yehudah, inasmuch as even Rebbi Yehudah may well agree with the Rabbanan in this case - because Rebbi Yehudah only said his Din there, where it is simply not feasible that the whole world happened to have been with the second pair of witnesses wherever they were; whereas here, it is perfectly feasible to say that the earlier pairs of witnesses did not know the testimony, whilst the last pair did.
(a) The Chachamim obligate the Eidim Zomemin only if they became Zomemin after the Din against the litigant whom they obligated was concluded. The Tzedokim however, rule - that they are sentenced to death even if they became Zomemin after the Din was executed.

(b) The Tzedokim based their ruling on the Pasuk "Nefesh Tachas Nafesh", the source of the Rabbanan's ruling is the Pasuk - "Ka'asher Zamam La'asos le'Achiv" ('only as long as his brother is alive (because after his death he is no longer considered a brother).

(c) The Rabbanan then learn from "Nefesh be'Nafesh" - that they are Chayav only after the G'mar-Din (the final ruling has been issued), but not before.

(d) When b'Rivi's father asked him that if the Eidim Zomemin are Chayav before the Din has been carried out (for "Ka'asher Zamam"), how much more so afterwards, he replied with the principle that he himself had taught him - 'Ein Onshin min ha'Din' (that one cannot punish on the basis of a 'Kal va'Chomer').

(a) Despite the fact that the Torah writes "Ish Asher Yikach es Achoso bas Aviv O Bas Imo", it needs to add "Ervas Achoso Gilah" - to teach us that the punishment of Kareis extends to a sister who is both paternal and maternal.

(b) We cannot learn this from a 'Kal va'Chomer' from "bas Aviv O bas Imo" - because of the principle (which the Torah is teaching us here) 'Ein Onshin min ha'Din'.

(c) And having written "Ervas Achoscha bas Avicha O bas Imecha ... (the Azharah)", the Torah nevertheless needs to add "Ervas bas Eishes Avicha Moledes Avicha" - because of the principle (which the Torah is teaching us here, too) 'Ein Mazhirin min ha'Din'.

(a) In connection with the Din in our Mishnah ('Ein ha'Eidim Zomemin Neheragin ad she'Yigamer ha'Din'), we learn from the 'Gezeirah-Shavah' ...
1. ... "Rasha (by Malkos)" "Rasha" (by Misah) - that the same principle applies to Chayvei Malkos.
2. ... "Rotze'ach (be'Shogeg)" "Rotze'ach" - that it applies to Chayvei Galus, too.
(b) In spite of the fact that the witnesses in the latter case also receive Malkos (as we learned above), we cannot learn it from the previous case of Chayvei Malkos - since their Din is not derived from "Ka'asher Zamam" (as we learned there too).

(c) When Rebbi Yehudah ben Tabai related how he killed an Eid Zomem after the G'mar Din but before the defendant had been put to death, to preclude the opinion of the Tzedokim, the Chachamim informed him - that he had spilled innocent blood, since we have learned (in the next Mishnah) that only both witnesses can become Zomemin, and not just one of them.

(d) Rebbi Yehudah ben Tabai's dual reaction to the Chachamim's reprimand was ...

1. ... to undertake from that time on - never to issue a ruling unless he was in the presence of Rebbi Shimon ben Shetach.
2. ... to atone for his mistake - by regularly visiting the grave of the witness whom he had sentenced to death and begging his forgiveness.
(a) Everyone believed the voice that they heard to be that of the Eid Zomem. Rebbi Yehudah ben Tabai tried to prove that it must have been his voice - on the basis that, following his own death, the voice would stop.

(b) Rav Acha b'Rei de'Rava refuted his proof however - because he could have either been taking Rebbi Yehudah ben Tabai to a Din Torah or he was coming to terms with him (either of which would also explain why his voice was no longer heard after Rebbi Yehudah ben Tabai's death).

(a) The problem our Mishnah has with the Pasuk 'al-Pi Shenayim Eidim O Sheloshah Eidim Yumas ha'Meis" is - why the Torah needs to add "O Sheloshah Eidim"? If two witnesses are valid, then three certainly are?

(b) The Tana Kama resolves it - by comparing two witnesses to three, inasmuch as just as three witnesses can render two, Zomemin, so too, can two render three, Zomemin.

(c) And from the word "Eidim" he learns - that they can even render a hundred witnesses Zomemin (because of the principle 'T'rei ke'Me'ah' [two witnesses are just as good as a hundred']).

(d) Rebbi Shimon learns from this Pasuk that three, and even a hundred witnesses, do not become Zomemin unless all of them are, just like the Din is by two. Even though the Torah writes "ve'Hinei Eid Sheker ha'Eid" (in the singular), we know that both witnesses must be Zomemin - because, as we have learned in Sotah, whenever the Torah writes S'tam "Eid", it means a pair of witnesses.

(a) According to Rebbi Akiva, the third witness comes (not to be lenient, like Rebbi Shimon, but) to be strict. And he goes on to explain that - even though the third witness is superfluous, he is subject to the same punishment as the first two, should they turn out to be Zomemin.

(b) And if that is true of someone who joins a group of sinners, he continues - how much more so will it be true of someone who joins a group of people who are performing a Mitzvah.

(c) The source of this 'Kal va'Chomer' is - the principle that 'Midah Tovah Merubah mi'Midas Pur'anus'.

(d) The second Chumra that he learn from the comparison of three witnesses to two is - that if one of the witnesses is found to be Pasul, then he disqualifies the entire testimony, even if he is the third witness, and there are two witnesses without him.

(a) Rebbi Yossi qualifies the previous ruling - by restricting it to Dinei Nefashos (where the Torah writes "ve'Hitzilu ha'Eidah" [to save the defendant from the death-sentence]), but not to Dinei Mamonos (see also Tosfos DH 'Amar').

(b) Rebbi agrees with Rebbi Akiva - but only if the third witness was party to the warning. Otherwise ...

(c) ... whenever two brothers witness a murder, they would immediately disqualify all witnesses who saw it too.

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